Filesharing: Why Canadian Law is Different

The US recording industry finally had its day in court.  After suing thousands of individuals for copyright infringement (most settled out of court), one of the cases finally made its way through trial and resulted in a damage award of $220,000 against Jammie Thomas, a now famous Minnesota woman.  An award of $220,000 for filesharing 24 songs works out to about $9,000 a song.  The verdict on October 4th has generated headlines around the world.  Thomas has indicated she will appeal.

The recording industry wanted to send a message and it definitely achieved that goal. However, it’s a pyrrhic victory: the industry’s legal fees far outstrip any amount recovered; the industry comes away looking like an unreasonable bully; and filesharing continues unabated. 

In Canada, the recording industry has not had the same “success” in court. The first attempt in BMG Canada Inc. v. John Doe (F.C.A.), 2005 FCA 193, [2005] 4 F.C.R. 81 hit a brick wall when the record company failed to obtain the identities of the particular customers alleged to have infringed copyright. 

Even worse for the recording industry, the judge in the BMG case actually said “downloading a song for personal use does not amount to infringement” which has been widely interpreted as judicial blessing for filesharing.  Never mind that this line was challenged by the Federal Court of Appeal ; in some ways the judicial cat is already out of the bag.

Lastly, the Canadian copyright levy on digital media has generated millions for the recording industry, arguably providing a de-facto license for personal copying when using “audio recording medium” as defined by the Copyright Board. 

It will be interesting to see whether this will be a high water mark for the legal adventures of the recording industry, or whether this judgement will simply encourage more enforcement suits.


Calgary – 13:30 MST 


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  1. […] In our earlier post we reviewed a recent US lawsuit against (the now-famous) Jammie Thomas involving filesharing and copyright infringement allegations south of the border.  That fight is continuing and lawyers at the Electronic Frontier Foundation have decided to assist on the appeal.     […]

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